Tuesday, July 10, 2007
MOTION FOR A CONTINUANCE
“DELAYS HAVE DANGEROUS ENDS”
King Henry VI, Part I, Act 3 Scene II.
After some procrastination, a debate has broken out on the blog about delays in criminal cases. We started the contretemps with a blub about a case before Judge Glick that took several years to get started. After that we responded to some comments on the blog, and our position was that we would delay a case if it benefited our client. To that end, we recognize that delays usually adversely affect the prosecution and benefit the defense. As we often tell our clients, after the arrest, the case is not going to get better for the prosecution, while there are a whole host of things that could happen that could make it better for the defense. We commented that delaying a case was not unethical. Then this comment arrived:
To Rump at 5:49 and Anonymous at 8:51, have either of you read Rule 4-3.2 of the Rules Regulating the Florida Bar recently? It specifically states that lawyers should expedite litigation. There is no exception concerning criminal defendants. While the end result may be beneficial to your client because witnesses disappear and your client gets a better plea, I definitely would not characterize such an action as "ethical." You are lucky that there are so many defense attorneys involved with the Florida Bar and grievance committees because, unfortunately, I doubt that your conduct will ever be disciplined, especially since almost every defense attorney engages in the same conduct. But just because everyone does it does not mean it is ethical.
Rumpole responds: There are two issues at work here, but for now we will address the issue of delaying a case for the sake of a client. The rule cited above states exactly as follows:
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
First, usually in a civil matter, the interests of the client side with a quick resolution. Thus the rule appears, but does not state, that it is aimed at civil cases. However, one can imagine a situation with a client incarcerated who needs a quick resolution. So the real issue is, what does a lawyer do when the interests of his client lie with a delay in the matter? The comment attached to the rule states in part: “Nor will failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose.”
Thus, on first blush, it appears, that a defense attorney delaying a case for the benefit of his/her client is in violation of this rule.
Rule 4-1.3 (Diligence) contains this statement in the comments: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”
(reading all these rules is starting to make us a bit nauseous. We have a policy against research in general in most matters.)
Let’s take it to the extreme: A lawyer is hired to represent a client accused of aggravated assault with a firearm where the gun was discharged. The client is facing a 20 year minimum mandatory under the 10-20-life statute. The state lists 5 witnesses: one complaining witness; one eyewitness; 3 cops. The lawyer quickly takes the two witnesses depositions and realizes the cops who did not see the event are probably not that important. The three cops, as is their practice, fail to appear for their first two scheduled depositions. Along the way, the lawyer learns that the two witnesses have met, fallen in love, and will be moving to Australia to start their new life in a month.
The case appears for sounding- can the lawyer, knowing that a continuance will benefit his client, truthfully tell the court he needs a continuance because the three officers failed to appear for deposition?
Has the lawyer acted with zeal and advocacy towards his client, or is the lawyer in violation of Rule 4-3.2?
We must admit we would ask for the continuance. We do not feel we are doing anything unethical, and we are acting in our client’s best interest. However, legal minds may differ, and we expect to hear from our readers about this.
The other side of this coin, as we mentioned above, are the time constraints associated with the current practice of criminal law. Most practitioners do not get clients that can pay fess such that they can concentrate on just a few cases. Many criminal practitioners will handle a gamut of cases running from murder to DUI, and various second and third degree felonies and misdemeanors in between. The small stuff, which can become time consuming, pays the bills while the lawyer scrambles to make time to work on the big cases. The change in the court appointment payment system only makes the pressures worse, not better.
The fact of the matter is that this is the real reason serious cases take so long to prepare. The lawyer is balancing the work on the case against the constant demands of the smaller cases that pay bills, and demand attention as well. Much like the problems doctors are facing, we would all like to spend more quality time with our clients working on their case. But the demands of running an office and paying bills work against all but the most fortunate among us.
We continue to persist in both comments we previously made: The State court system can do more to guard against the unreasonable delays of cases taking years to prepare for trial; and any lawyer who delays a case for their client’s benefit is not acting unethically.
We invite comments in the matter.
See you in court, not asking for continuances, as we like trying cases.